Same Sex Different States: When Same-Sex Marriages Cross State Lines.

• Author: Borchers, Patrick J.
• Position: Book review

SAME SEX DIFFERENT STATES: WHEN SAME-SEX MARRIAGES CROSS STATE LINES. By Andrew Koppelman. (1) Yale University Press. 2006. Pp. xviii + 204. Hardback $35.00.

Andrew Koppelman, Professor of Law and Political Science at Northwestern University, is one of the most prolific and influential commentators on the same-sex marriage debate and the conflict-of-laws questions that it presents. His thoughtful and well-written book, entitled Same, Sex, Different States: When Marriages Cross State Lines, (3) is an important contribution to this literature.

The book draws on Koppelman's earlier writings on the same-sex marriage issue, the federal Defense of Marriage Act "DOMA", (4) and related topics. In it he attempts to stake a middle ground between the "pro-recognition" and the "anti-recognition" camps with regard to same-sex marriages solemnized in states or nations that allow such unions.

One of the most admirable features of the book is that it avoids overstating its case or embracing any of the easy solutions that, while appealing to one side or the other, do not hold up to scrutiny. Thus Koppelman quite rightly rejects the "Full Faith and Credit" solution advanced by the pro-recognition camp that dominated the popular press and some law review articles written shortly after the Hawaii Supreme Court's decision in Baehr v. Lewin. (5) That decision, which appeared likely to make the Aloha State the first to allow same-sex marriages, provoked the federal DOMA, which Koppelman quite rightly notes was aimed at a mostly imaginary target (pp. 116-18).

The far-fetched notion that led to the federal DOMA was that same-sex marriage would be a sort of card trick in which one card is flipped over and the whole rest of the deck follows. (6) As Koppelman quite rightly notes, this argument depended on a thorough confusion of what constitutes a "judgment" for full-faith-and-credit purposes (p. 118). For a marriage to have this "card trick" effect, it would have to involve the actual resolution of disputed issues. But, of course, the decision to enter into a marriage is not a disputed matter in the way that a divorce can be. It's simply not the case that Pat wants to get married to Fran, but Fran doesn't want to get married to Pat, and they have to go to a judge who will then decide whether they are to be married or not.

On the other end of the spectrum is the solution advanced by some in the anti-recognition camp. That camp proposes to amend the U.S. Constitution to ban same-sex marriages. Although opinion polls show that a large majority of Americans are opposed to same-sex marriage in principle, (7) it seems unlikely that the political will to amend the Constitution exists. Moreover, since opposition to same-sex marriage is much weaker among younger adults, the solution of amending the Constitution seems unlikely to gain momentum with the passage of time (p. 152).

With total victory for either side out of reach, the question to which Koppelman addresses himself is how best to mediate the kulturkampf between the small number of states who have institutionalized same-sex unions (8) and the 40 or so states who have by positive law expressed their opposition (p. 138).

The engine driving the potential for policy disputes is the lex loci celebrationis (or "the law of the place of the celebration") rule in the conflict of laws. The general rule, from time immemorial, has been that a marriage that is valid under the law of the state in which it is celebrated is valid everywhere. (9) This raises the possibility that once a state recognizes...